Question: Whether party-switching or hopping is illegal, if not immoral in Malaysia.
In fact, this issue has been cropping up ever so often since the March 8 general election.
Legally, party-hopping is not unlawful.
Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join and leave any association, but Parliament may by law impose such restrictions as it deems necessary in the interest of the security of Malaysia or any part thereof, public order, morality, labour or education.
In 1992, the Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan state constitution which prohibits party-hopping is inconsistent with Article 10(1)(c). Article XXXIA of Part I of the Kelantan constitution provides that if any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever, ceases to be a member of such political party, he shall cease to be a member of the Legislative Assembly and his seat shall become vacant.
The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan Constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.
In the words of Justice Tan Sri Gunn Chit Tuan: "I cannot, by any stretch of imagination, see how such a restriction on the membership of a Legislative Assembly, which infringes a citizen's right to form associations under Article 10(1)(c) of the Federal Constitution, can be deemed necessary or expedient in the interest of Malaysia or any part thereof, public order, morality or even labour or education."
However, neither Gunn nor the other two Supreme Court judges, Tun Abdul Hamid Omar and Tan Sri Edgar Joseph Jr expounded further why such legislation would not be in the interest of the security of Malaysia, public order or morality except to imply that the word "morality" related to immoral activities in a sexual sense.
But later in 2005, the Court of Appeal held in Sivarasa Rasiah v Badan Peguam Malaysia & Anor that Section 46A(1)(c)(ii) of the Legal Profession Act 1976 is one example of such restrictions which Parliament may impose in the interest of "morality" as it involved the issue of ethics.
This section prohibits any person who is holding an office in any political party from becoming an elected member of the Bar Council or a Bar Committee or a member of any of its committees.
Justice Datuk (now Tan Sri) Alauddin Mohd Sheriff said the word "morality" should be given a broad, liberal and extensive meaning, wider than merely good values. As "morality" was not defined in the Federal Constitution, Alauddin went on to say the word in the Federal Constitution should be given its ordinary meaning.
He then adopted the meaning from the New Shorter Oxford English Dictionary on Historical Principles by Lesley Brown, Volume 1, which defines "morality" to include the doctrine or branch of knowledge that deals with right and wrong conduct and with duty and responsibility; moral philosophy, ethics.
With these two decisions, it would mean only Parliament and not any state legislature can bring in a law to prohibit party-hopping. If such law can be justified on the grounds of "morality", then no amendment to the Federal Constitution will be necessary and the government will only need a simple majority to pass an anti-hopping legislation.
So, we must now answer the second question whether party-hopping is immoral, not in a sexual sense albeit the hopper's enemies may very well throw obscenities at him.
Indeed, Datuk Ibrahim Ali, often described as one of Malaysia's most habitual party-hoppers, does not think so.
He argued that just like a human marriage, a political marriage can naturally lead to a divorce, and any anti-hopping law will be against human rights principles.
In fact, other countries have taken totally divergent legal positions on this issue.
In South Africa, amendments were made to its Constitution and other laws in 2006 to enable party-hopping by removing clauses which required members of the National Assembly to give up their seats should they change parties.
On the other hand, New Zealand enacted the Electoral Integrity Act of 2001 (since expired) to proscribe party-hopping or waka-jumping (in its local language) requiring politicians elected from a party to resign from Parliament if they left their party's parliamentary caucus.
In my view, party-hopping is not only against morality, it is a nefarious act of betrayal against the politician's own party and the people who have voted him in because of his association with a particular political party. Party-hopping, therefore, has no place in a parliamentary democracy like ours. Party-hopping breeds corruption -- not just in the monetary sense as it is also a corruption of power.
If any government comes into existence through this unethical means, it has no moral credibility to govern. Neither does it have any moral authority to preach on accountability and good governance.
As a matter of principle, any person who wishes to abandon ship and cross over should seek a fresh mandate from the electorate, failing which his act of divorcing from the party which the people have voted in is equipollent to committing an act of dishonesty.
In the oft-quoted words of the 15th American president, James Buchanan, "The ballot box is the surest arbiter of disputes among free men."
Further, if we can have Article 48(6) of the Constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for a period of five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held.
If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of various political parties sardonically enticing each other to join them.
A fortiori, the country can also move on by accepting the March 8 general election results as final and incapable of being altered.
An anti-hopping law will bring about and maintain political stability, and politicians from all divides should very well remember that what goes around will come around to haunt them, and it is in their interest to support an anti-hopping legislation.
To conclude, let me quote South African Inkatha Freedom Party president Mangosuthu Buthelezi on party-hopping: "Floor-crossing is like the HI-virus because it robs the political system of all honour, holding political parties hostage by rendering them unable to discipline their own members. It allows the emergence of careerists, self-serving politicians, which are a very strange breed because they do not honour the sanctity of the vote cast in the ballot box."
I will not judge but I shall leave it to you readers to decide whether a political hopper is like a HIV-carrier. Likewise, whether our society should treat a political leaper like a political leper.
16/06/10
In fact, this issue has been cropping up ever so often since the March 8 general election.
Legally, party-hopping is not unlawful.
Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join and leave any association, but Parliament may by law impose such restrictions as it deems necessary in the interest of the security of Malaysia or any part thereof, public order, morality, labour or education.
In 1992, the Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan state constitution which prohibits party-hopping is inconsistent with Article 10(1)(c). Article XXXIA of Part I of the Kelantan constitution provides that if any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever, ceases to be a member of such political party, he shall cease to be a member of the Legislative Assembly and his seat shall become vacant.
The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan Constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.
In the words of Justice Tan Sri Gunn Chit Tuan: "I cannot, by any stretch of imagination, see how such a restriction on the membership of a Legislative Assembly, which infringes a citizen's right to form associations under Article 10(1)(c) of the Federal Constitution, can be deemed necessary or expedient in the interest of Malaysia or any part thereof, public order, morality or even labour or education."
However, neither Gunn nor the other two Supreme Court judges, Tun Abdul Hamid Omar and Tan Sri Edgar Joseph Jr expounded further why such legislation would not be in the interest of the security of Malaysia, public order or morality except to imply that the word "morality" related to immoral activities in a sexual sense.
But later in 2005, the Court of Appeal held in Sivarasa Rasiah v Badan Peguam Malaysia & Anor that Section 46A(1)(c)(ii) of the Legal Profession Act 1976 is one example of such restrictions which Parliament may impose in the interest of "morality" as it involved the issue of ethics.
This section prohibits any person who is holding an office in any political party from becoming an elected member of the Bar Council or a Bar Committee or a member of any of its committees.
Justice Datuk (now Tan Sri) Alauddin Mohd Sheriff said the word "morality" should be given a broad, liberal and extensive meaning, wider than merely good values. As "morality" was not defined in the Federal Constitution, Alauddin went on to say the word in the Federal Constitution should be given its ordinary meaning.
He then adopted the meaning from the New Shorter Oxford English Dictionary on Historical Principles by Lesley Brown, Volume 1, which defines "morality" to include the doctrine or branch of knowledge that deals with right and wrong conduct and with duty and responsibility; moral philosophy, ethics.
With these two decisions, it would mean only Parliament and not any state legislature can bring in a law to prohibit party-hopping. If such law can be justified on the grounds of "morality", then no amendment to the Federal Constitution will be necessary and the government will only need a simple majority to pass an anti-hopping legislation.
So, we must now answer the second question whether party-hopping is immoral, not in a sexual sense albeit the hopper's enemies may very well throw obscenities at him.
Indeed, Datuk Ibrahim Ali, often described as one of Malaysia's most habitual party-hoppers, does not think so.
He argued that just like a human marriage, a political marriage can naturally lead to a divorce, and any anti-hopping law will be against human rights principles.
In fact, other countries have taken totally divergent legal positions on this issue.
In South Africa, amendments were made to its Constitution and other laws in 2006 to enable party-hopping by removing clauses which required members of the National Assembly to give up their seats should they change parties.
On the other hand, New Zealand enacted the Electoral Integrity Act of 2001 (since expired) to proscribe party-hopping or waka-jumping (in its local language) requiring politicians elected from a party to resign from Parliament if they left their party's parliamentary caucus.
In my view, party-hopping is not only against morality, it is a nefarious act of betrayal against the politician's own party and the people who have voted him in because of his association with a particular political party. Party-hopping, therefore, has no place in a parliamentary democracy like ours. Party-hopping breeds corruption -- not just in the monetary sense as it is also a corruption of power.
If any government comes into existence through this unethical means, it has no moral credibility to govern. Neither does it have any moral authority to preach on accountability and good governance.
As a matter of principle, any person who wishes to abandon ship and cross over should seek a fresh mandate from the electorate, failing which his act of divorcing from the party which the people have voted in is equipollent to committing an act of dishonesty.
In the oft-quoted words of the 15th American president, James Buchanan, "The ballot box is the surest arbiter of disputes among free men."
Further, if we can have Article 48(6) of the Constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for a period of five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held.
If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of various political parties sardonically enticing each other to join them.
A fortiori, the country can also move on by accepting the March 8 general election results as final and incapable of being altered.
An anti-hopping law will bring about and maintain political stability, and politicians from all divides should very well remember that what goes around will come around to haunt them, and it is in their interest to support an anti-hopping legislation.
To conclude, let me quote South African Inkatha Freedom Party president Mangosuthu Buthelezi on party-hopping: "Floor-crossing is like the HI-virus because it robs the political system of all honour, holding political parties hostage by rendering them unable to discipline their own members. It allows the emergence of careerists, self-serving politicians, which are a very strange breed because they do not honour the sanctity of the vote cast in the ballot box."
I will not judge but I shall leave it to you readers to decide whether a political hopper is like a HIV-carrier. Likewise, whether our society should treat a political leaper like a political leper.
16/06/10
Loyalty = $$$
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